Threats of a New Imperial Presidency

Two weeks ago I published the blog post New Attacks on the Administrative State. There I claimed that legitimate concerns about constitutional democracy lie behind recent right-wing attacks on the administrative state. But these attacks reflect deeply flawed understandings of constitutional democracy, and the proposed remedies are dangerously anti-democratic.

Chief among dangerous remedies is the attempt to create a new imperial presidency. That, along with the authoritarian personality of former President Donald Trump, drastically raises the stakes for this year’s presidential election in the United States. It’s no exaggeration to say the future of constitutional democracy in the U.S.—and around the world—is on the line.

Indeed, it would be politically naïve to ignore current parallels with the rise of European fascism in the 1920s and 1930s. It’s no accident that some Americans are preparing to move to other countries if the election goes badly. There are so many, in fact, that The New York Times recently invited its readers to respond to the following question: Are you planning to leave the U.S. if the election doesn’t go your way?

The Imperial Presidency

“The Imperial Presidency” entered the American political lexicon thanks to a 1973 book with that title by Arthur M. Schlesinger, Jr. He had been Special Assistant to President John F. Kennedy. Schlesinger wrote this book shortly after Richard M. Nixon was reelected President, at the height of the Watergate Scandal. He warned that the president’s war-making powers had vastly expanded since World War Two. (Such expansion coincides with the postwar development of the administrative state.) During the Vietnam War, Schlesinger said, this had come to a head in the Nixon administration. According to Schlesinger, an imperial presidency creates dangerous imbalances among the legislative, executive, and judicial branches of government, feeding the abuse of power.

More than thirty years later, Charlie Savage, whom my previous post quotes, used similar terms to criticize the administration of President George W. Bush, spearheaded by Vice President Dick Cheney. Under the guise of a war on terrorism, the Bush administration had set out to give the White House enormous new powers beyond both Congress’s control and judicial oversight, Savage said. He titled his 2008 book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

As both Schlesinger and Savage acknowledge, struggles over the scope of executive power go back to the founders of the United States Constitution; Alexander Hamilton was particularly adamant about having a strong president. And there have been many stages in this struggle, as Paul Starobin shows in a 2006 article titled “Imperial Presidency Has Long History.” In that sense, the current crisis over presidential power is nothing new.

Internal Enemies

Nevertheless, the threats of a Trumpist imperial presidency go beyond anything we’ve witnessed before, for three reasons. First, the rationale for expanding presidential powers has shifted. Previous administrations primarily justified such expansion by the need to fight perceived external threats to national security—communists in North Korea (Harry Truman), Cuba (Kennedy), and Vietnam (Lyndon Baines Johnson and Nixon), and terrorists in Iraq and Afghanistan (Bush and Barack Obama).

“Enemies.” Oil painting (1854) by Joseph Stevens , Public domain, via Wikimedia Commons

But Trump and his supporters are isolationists in foreign affairs, and they are nationalists at home. They want enhanced powers to pursue internal enemies, whom they don’t hesitate to label communists and terrorists, regardless of their opponents’ actual beliefs and practices. The advocates of a new imperial presidency would pursue a religious war in the United States, a war of good versus evil. If they have their way, no agency of government, no leaders in civil society (news media, schools, universities, advocacy organizations, etc.), and no political opponents—not even Presidents Obama and Joe Biden—will be spared. As Kristin Kobes Du Mez eloquently explains in a recent interview with NPR’s Michel Martin, that’s why we need to take Project 2025 and white Christian nationalism seriously.

Unlimited Powers

Image by Amarbondhu, CC BY 4.0, via Wikimedia Commons

Second, despite attempts to circumvent congressional control and judicial oversight, previous administrations have paid lip service to the rule of law. And when they were found in violation of the law, they usually lived with the consequences. The Trumpists, however, despise this democratic ideal. They make no secret of their desire to prosecute the prosecutors, to stack the courts with their allies, and to ignore laws or rulings they don’t like. Unchecked power, not public justice under the rule of law, is their ideal.

In 2022, for example, Trump called for parts of the U.S. Constitution to be terminated in order to overturn the 2020 presidential election. And very recently he told an audience of conservative Christians: “In four years, you don’t have to vote again. We’ll have it fixed so good, you’re not going to have to vote”—thereby suggesting that national election laws, indeed the entire electoral process, will be terminated.

Some commentators don’t take such outbursts seriously. But I do. They fit a larger pattern of authoritarian populism, and they provide clear signs of what Trump and his followers most desire: unlimited power to carry out their nationalist agenda.

Official Immunity

The Supreme Court as composed June 30, 2022 to present. Photo by Fred Schilling, Public domain, via Wikimedia Commons

Third, for the first time in American history, the Supreme Court has ruled, in the case of Trump vs. United States, that the president has broad immunity from prosecution when the president acts in an “official” capacity. This implies, for example, that if, as commander in chief, the president ordered military forces to wipe out political opponents, or if the president “officially” tried to overturn an election, there would be no legal way to stop this or hold the president accountable afterward. In effect, the Supreme Court has declared the president—when acting in official capacity—to be above the law.

Given the first two factors I’ve mentioned—white Christian nationalism and disdain for the rule of law—this Court decision vastly increases the power a new imperial presidency could exercise. That includes the wholesale firing of thousands of civil servants across federal agencies like the Department of Justice and the Environmental Protection Agency and replacing them with ideologically aligned allies, as Project 2025 urges.

The Supreme Court’s ruling holds grave implications for the future of constitutional democracy in the United States. That’s why President Biden has proposed revisions to how the Supreme Court operates as well as a constitutional amendment to establish that no president is immune from prosecution for crimes committed while in office. Yet it will take years, perhaps decades, for these proposals to be adopted. In the meantime, as Erwin Chemerinsky says in The New York Times, there’s only one way to avoid the disaster of a Supreme-Court-enabled new imperial presidency: make sure Trump and his supporters lose in the November 5 election.

An Olympic Moment

USA gold medalist gymnastic team in Paris. Photo by Chang W. Lee for The New York Times

Much has changed in the two weeks since I posted about right-wing attacks on the administrative state. Republicans wrapped up their God-and-country national convention, anointing Donald Trump and Senator JD Vance as their political saviors. President Biden announced he would not stand for re-election and strongly endorsed Vice President Kamala Harris to be the Democrats’ presidential nominee. The Harris campaign has taken off at warp speed amid widespread celebrations of her candidacy, just as an inspiring Paris Olympics has also launched. And JD Vance has quickly learned not to mess with “childless cat ladies,” of whom, like Kamala Harris, my wife is one.

It's easy in this unusual moment to lose sight of the threats Trump and his supporters pose: threats to constitutional democracy; threats to everyone who opposes white Christian nationalism and authoritarian populism; and threats to all the real people whose lives and livelihoods depend on genuinely democratic governance and the rule of law. Yet the threats remain.

This Olympic moment calls for what I’ve described as genuine patriotism. Genuine patriots will donate, campaign, and vote to promote a country that lives up to the promise of “liberty and justice for all.” Every time your country’s national anthem plays to mark another Olympic victory, that’s something to remember. The future of constitutional democracy is on the line. 

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